Raphaely v. Gartner Inc.

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 DORTH RAPHAELY, Case No. 20-cv-06166-DMR 8 Plaintiff, ORDER ON CROSS MOTIONS FOR 9 v. SUMMARY JUDGMENT 10 GARTNER INC., et al., Re: Dkt. Nos. 32, 34 11 Defendants. 12 This is an action for severance benefits pursuant to the Employee Retirement Income 13 Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132 (a), brought by Plaintiff Dorth Raphaely 14 against his former employer, Gartner, Inc., and Gartner, Inc. Severance Plan. Now before the 15 court are the parties’ cross motions for summary judgment. [Docket Nos. 32 (Pl.’s Mot.), 34 16 (Defs.’ Mot.).] This matter is suitable for resolution without a hearing. Civ. L.R. 7-1(b). For the 17 following reasons, Raphaely’s motion is denied. Defendants’ motion is granted. 18 I. FACTS 19 The facts set forth below are undisputed unless otherwise stated. Raphaely is a former 20 employee of Gartner, Inc. (“Gartner”) whose employment was terminated in November 2019. The 21 parties dispute his entitlement to severance benefits under the Gartner, Inc. Severance Plan 22 (“Plan”), an ERISA-governed welfare benefit plan. Defendants contend that Raphaely’s 23 employment was terminated for performance-related reasons, rendering him ineligible for 24 severance benefits under the Plan. Raphaely disputes that he was terminated for performance25 related reasons and contends that he is entitled to severance benefits. 26 A. Employment with Gartner and Relevant Terms of the Plan 27 Gartner hired Raphaely in February 2019 as Group Vice President, Content Strategy at the 1 [Docket No. 32-2 (Administrative Record, “A.R.”) 67-68.] His employment was covered by the 2 Plan, a welfare benefit plan governed by ERISA that provides severance benefits to certain 3 eligible employees upon their departure from Gartner. A.R. 41-61. The Plan is administered by 4 “[t]he Gartner, Inc. Severance Plan Committee,” which is comprised of Gartner’s chief legal 5 officer, chief human resources officer, and head of compensation and benefits. A.R. 44, 48. 6 Article II of the Plan addresses payment of severance benefits and provides that Gartner 7 “shall pay Severance to Severed Employees in accordance with [the Plan] . . .” A.R. 53. The Plan 8 defines “severance” as “the income replacement benefits provided under the Plan to a Severed 9 Employee in accordance with Article II.” A “Severed Employee” is “an Eligible Employee who 10 has incurred a Covered Termination of Employment.” A.R. 51. The Plan defines “Covered 11 Termination of Employment” as “the cessation of an Employee’s active service with the 12 Employer, other than through the Employee’s death, disability or retirement.” However, it also 13 provides that “an Employee will not have a Covered Termination of Employment if the Employee 14 voluntarily resigns or if the Employee is terminated by the Employer” for certain enumerated 15 reasons, including “performance-related reasons.”1 A.R. 49-50. The Plan does not define 16 “performance-related reasons.” — 17 — — 18 — 1 The full text of the “Covered Termination of Employment” provision is as follows: — 19 — “Covered Termination of Employment” means the cessation of an Employee’s active service with the Employer, other than through the — 20 — Employee’s death, disability or retirement. Notwithstanding the foregoing, an Employee will not have a Covered Termination of — 21 — Employment if the Employee voluntarily resigns or if the Employee is terminated by the Employer as a result of the Employee’s: — 22 — (a) violation of any law, — 23 — (b) insubordination, (c) disorderly conduct in the workplace, — 24 — (d) violation of the Employer’s alcohol/drug policy, (e) unethical or fraudulent conduct, — 25 — (f) violation of corporate compliance policies, (g) refusal or failure to comply with job conditions, as set forth — 26 — by the Employer from time to time (including changes in work schedules or work days), — 27 — (h) attendance-related reasons, or 1 The amount of severance to which an individual is entitled under the Plan depends on their 2 position with the company. In relevant part, the Plan provides that Group Vice Presidents are 3 entitled to 26 weeks’ salary as severance in the event of a “Covered Termination of Employment.” 4 A.R. 53 -54. 5 B. Termination and Claim for Benefits 6 Raphaely worked for Gartner for approximately ten months before Gartner terminated him 7 on November 11, 2019. The Administrative Record contains one document contemporaneous 8 with the termination: an email Raphaely wrote to an individual named Gene Hall2 on November 9 11, 2019 after he was terminated. See A.R. 66. Raphaely wrote to Hall to discuss his termination 10 and provide “feedback about the situation and how it is being handled.” Raphaely noted that he 11 had been “fired” by “Ken [Allard]” and wrote, “I completely understand that as a leader, Ken can 12 go in another direction without reason—that is his right as a leader.” He continued, “[t]he issue I 13 do have is that I’m not being offered any severance” and disputed Allard’s statement that “he’s 14 firing me for cause.” Raphaely wrote, “I never received any negative feedback that my 15 performance was an issue.” He also referenced a “company wide engagement survey,” the results 16 of which he had not yet seen, and wrote, “[the survey] happened during the rocky period with our 17 writers where they were banding together over fair pay and suggesting that they may unionize . . . 18 [t]he writers haven’t been happy with the changes I’ve implemented and I didn’t expect them to 19 [be].” Raphaely asked Hall to “reconsider Gartner’s decision to not offer severance” to him. A.R. 20 66. 21 Hall apparently forwarded Raphaely’s email to Gina Formichelli, Gartner’s Senior Vice 22 President of Human Resources. She responded to Raphaely on November 13, 2019, by stating 23 “[g]iven that your separation was for performance related reasons, no severance is available.” 24 A.R. 65 . Formichelli wrote that Gartner was “able to offer [Raphaely] other separation benefits . . 25 . including COBRA subsidy, outplacement services, and waiving recoupment of [Raphaely’s] 26 relocation bonus . . . if [Raphaely] sign[s] the separation agreement that had been provided to — 27 — 1 [him].” A.R. 65. Formichelli explained to Raphaely that “[t]hese are not standard separation 2 terms; they were offered to help you get through the forthcoming transition.” Id. 3 On December 16, 2019, Raphaely made a written request for severance benefits under the 4 Plan in the amount of 26 weeks’ salary. A.R. 198-99. The Administrator denied the claim in 5 writing on March 4, 2020 on the ground that Raphaely was “disqualifie[d] . . . from being eligible 6 for benefits under the Plan” because his “employment was terminated . . . for performance-related 7 reasons” without further explanation, citing the “Covered Termination of Employment” provision. 8 A.R. 196 -97. The letter provided information about Raphaely’s right to appeal the denial under 9 the terms of the Plan and notified him of his rights under ERISA. A.R. 197. 10 C. Appeal of the Claim Denial 11 Raphaely appealed the Administrator’s denial on March 30, 2020 and requested production 12 of 16 categories of documents: 13 1. Documents governing the operation [of] the Severance Plan for the years 2018 and 14 2019. 15 2. The annual report for the Severance Plan for the years 2018 and 2019. 16 3. The summary plan description for the Severance Plan. 17 4. The Severance Plan’s annual Financial Report for the years 2018 and 2019. 18 5. All documents related to the authorization of any person or committee to 19 administer the Severance Plan for the years 2018 and 2019. 20 6. The Rules and Procedures established by the Plan Administrator for the years 2018 21 and 2019. 22 7. A complete copy of the Severance Plan’s claim file pertaining to Dorth Rapaely 23 [sic]. 24 8. A complete copy of all other documentation (whether maintained in hard copy or 25 computer medium) pertaining to or referring to Dorth Raphaely’s severance benefit 26 claim, whether or not it is deemed to be part of the “claim file.” 27 9. A copy of all internal rules, guidelines, protocols, or other similar criteria which 1 benefit benefits [sic]. 2 10. Each document that was submitted, considered, or generated in the course of 3 making all decisions related to Dorth Raphaely’s severance benefits, without regard 4 to whether they were relied upon in the decision, including but not limited to the 5 claim manual(s). 6 11. All documents that constitute a statement of policy or guidance with respect to 7 claim determinations for severance benefit claimants. 8 12. All documents that reflect any legal opinions obtained regarding the subject of 9 whether Dorth Raphaely (or any other Gartner employee) is entitled to severance 10 benefits under the Severance Plan. 11 13. All documents that demonstrate that the Severance Plan’s processes and safeguards 12 designed to ensure and to verify that severance benefit claims determinations are 13 made in accordance with the terms of the Severance Plan, and that those terms have 14 been applied consistently with respect to similarly situated claimants. 15 14. All documents created by Gartner in connection with the drafting or creation of the 16 Severance Plan. This includes, but is not limited to, any documents that discuss, 17 relate or refer to Gartner’s intention or purpose in creating the language of the 18 Severance Plan. 19 15. All documents that evidence the Plan Administrator’s grant of discretionary 20 powers. 21 16. Any and all contracts or other documents under which Dorth Raphaely’s severance 22 plan has been established, operated or administered (see Hughes Salaried Retirees 23 Action Committee v. Administrator of The Hughes Non-Bargaining Retirement 24 Plan, 72 F.3d 686 [9th Cir. 1995], where the court defined the universe of 25 documents subject to disclosure under ERISA § 104(b)(4) as those “which describe 26 the terms and conditions of the plan, as well as its administration and financial 27 status”). 1 The Plan responded to the appeal and request for documents on April 17, 2020 and stated 2 that it was producing four groups of documents: 1) a copy of the Plan document dated February 3 15, 2018; 2) the Plan’s IRS Form 5500 for 2018; 3) the Plan’s summary plan description; and 4) 4 “[t]he internal documents to which Mr. Raphaely is entitled and upon which the Committee relied, 5 or considered, in determining that Mr. Raphaely was ineligible for benefits under the Plan.” A.R. 6 39-40. 7 The Plan produced a 120-page document entitled “Employee Survey Results” dated 8 September 2019. A.R. 69-189; see Pl.’s Mot. 11 (describing the Plan’s April 17, 2020 production 9 of documents). The document is a report of comments from employees “about what they love at 10 Gartner Digital Markets—and what they’d like to see improved,” grouped by topics and attributed 11 to individual departments. A.R. 71. The Employee Survey Results includes numerous comments 12 about Raphaely by members of the content team. The comments about Raphaely are uniformly 13 negative and he is the only individual who is repeatedly criticized by name. They include: 14 • The content team is currently working in a toxic work environment, which began when Dorth rolled out his content 15 strategy. During the strategy rollout meeting, Dorth told the content analysts that if we didn’t comply with or agree with the 16 new strategy, he would “help us find a new job”, effectively informing us that we should fear redundancy if we dared to 17 question this complete overhaul of our job roles. In the same meeting, he commented on hiring plans in India, and mentioned 18 that hiring there was easier because there is “cheap labor”. This is extremely offensive and degrading language. There is a general 19 culture of fear and retaliation in the content team . . . Dorth regularly undercuts and undermines the content managers during 20 meetings, and gives drastically conflicting information regarding new changes or initiatives . . . A.R. 76. — 21 — • The sudden 180 in leadership, values, and direction have severely 22 impacted my motivation. Dorth introduced himself and said he’s going to make us stressed every day at work and he has. We went 23 from a research team, working to help businesses solve real problems to a faulty production line of marketing copy. A.R. 81. — 24 — • The content team’s new GVP has had an enormous, demoralizing 25 impact on the whole team, from directors to analysts. A.R. 81. 26 • Morale is very low . . . Dorth’s aggressive goals are intended to drive competition and divide . . . A.R. 83. — 27 — meetings, and when he does he’s been on facebook or texting— 1 this sets the tone that he doesn’t think our time is worth his attention. When Ken and Dorth talk about our content they only 2 say how weak it’s been and is the reason traffic is down for the sites . . . A.R. 95. — 3 — • Dorth values ‘pressure testing’ his employees by setting stressful 4 deadlines, attempts to competitively pit the analysts against one another and against the production team, and chronically 5 dismisses the concerns of his team. Everything he has set into motion in the past few months works to take away from our core 6 principles as GDM analysts, and though our team is made up of capable, hard working writers, I am deeply afraid we are being set 7 up to fail. A.R. 96. 8 • At this point it feels like we’re succeeding in spite of senior leadership rather than because of them. Dorth is trying really hard 9 to create a competitive rather than collaborative culture. His words and actions have directly resulted in a toxic work 10 environment. He lacks tact and often makes insulting remarks to staff (e.g., making a comment RE: a position on the India team 11 being cheap labor, telling the team “if you don’t like it, then leave,” undercutting managers in meetings, complaining/making 12 light of employees’ concerns to other employees, questioning people on public channels in Slack (often for mistakes he made in 13 Wordpress), but then getting upset when someone asks him a direct question on Slack, making light of sexual assault 14 accusations in the Fantasy Football Slack thread, and many more . . . A.R. 101. — 15 — • The management shakeup at Gartner Digital Markets since 16 Anthony’s departure has had a profoundly negative impact on everyone, regrettably turning what was once a wonderful place to 17 work into the opposite. The largest part of that has been the arrival of Dorth Raphaely . . . A.R. 141. — 18 — • I don’t trust management specifically because of Dorth Raphaely. 19 He is rash, hasn’t a clue how to lead, and wants to generate a culture of competition and meanness . . . [h]e should never have 20 been hired. A.R. 156. 21 • My direct manager . . . is also frequently undermined and devalued in public meetings by Dorth. It is painful to watch and 22 I do not blame her at all for the toxic work environment. A.R. 161. — 23 — On May 4, 2020, Raphaely’s counsel sent a second letter to the Administrator appealing — 24 — the denial of the claim, stating that the purpose of the letter was to “submit evidence and argument — 25 — in support of his appeal.” A.R. 19-29. First, counsel disputed that Raphaely’s employment was — 26 — terminated for performance-related reasons and submitted a declaration by Raphaely. A.R. 23, 2627 29 (Raphaely Decl. May 4, 2020). Raphaely denies that he ever received “feedback indicating 1 poor performance” or “a performance review indicating poor performance” during his 2 employment. A.R. 27 (Raphaely Decl. ¶¶ 8, 9). He states that he received “considerable positive 3 feedback” during his employment and describes compliments and statements about his work by 4 his boss, Ken Allard, and sets forth three positive comments regarding his performance from other 5 Gartner employees. A.R. 27-28 (Raphaely Decl. ¶¶ 11, 12). 6 Raphaely also addressed the Employee Survey Results, stating, “I was not made aware of 7 the results of this survey prior to my termination. The anonymous comments from employees 8 completing the survey were not treated as a performance review prior to my termination. I am not 9 aware of these comments being used in any quantitative assessment of Gartner management.” 10 A.R. 27 (Raphaely Decl. ¶ 10). 11 Second, counsel asserted that the Administrator had failed to produce documents regarding 12 Raphaely’s work performance that they had previously requested, arguing that this prevented 13 Raphaely “from receiving a full and fair review on appeal.” A.R. 23-24. Specifically, counsel 14 wrote that “GARTNER has exclusive possession, custody and control over the documents that 15 establish that Mr. Raphaely’s employment was NOT terminated for performance-related reasons. 16 GARTNER has refused to produce those documents.” A.R. 23. Counsel did not identify any 17 particular documents that Gartner had withheld. 18 Finally, counsel argued that there was no evidence in the administrative record that 19 supported the conclusion that Raphaely had been terminated for performance-related reasons. 20 A.R. 24 . Counsel specifically addressed the Employee Survey Results, arguing that the survey 21 “was used to determine employee satisfaction” and “is not a ‘performance-related’ document.” 22 A.R. 24 . 23 On May 13, 2020, Severance Plan Committee member Jim Crane forwarded Raphaely’s 24 declaration to Ken Allard, Raphaely’s former supervisor, and asked for “any comments or 25 thoughts” for the Committee to consider as part of the appeal. A.R. 6. Allard responded in an 26 email on May 18, 2020 in which he wrote: 27 I am quite surprised by his claim that he did not receive feedback leadership style, communication challenges, strategic direction, and 1 performance. I (and others) also gave him explicit written feedback via e-mail regarding concerns with how he communicated with peers 2 and his team, his struggle to translate high level phrases such as ‘act like a media company’ into an executable strategy his team 3 understood, and an absence of a content planning process and associated production schedule . . . Dorth, no doubt, received some 4 positive feedback about his initial ideas and a few steps he took to improve his capability gaps. However, ultimately, his performance 5 did not meet the standards we needed from an executive leader of a critical function. These shortcomings, coupled with alarming 6 feedback on Dorth’s performance received in response to an employee engagement survey, resulted in our decision to terminate 7 his employment. 8 A.R. 5 . 9 On May 28, 2020, the Administrator notified Raphaely of its denial of his appeal. A.R. 310 4. It noted that the Administrator had considered Raphaely’s contention that he had not received 11 any feedback indicating poor performance and stated that it found the contention “inaccurate,” 12 citing Allard’s email to Crane. Based on this evidence, along with “the negative and concerning 13 comments about Mr. Raphaely’s performance from his co-workers that were previously provided” 14 to counsel, the Administrator stated that it “reasonably concluded that Mr. Raphaely was 15 terminated for performance-related reasons.” A.R. 3. 16 The Administrator also noted Raphaely’s contention that Gartner had not produced 17 “necessary documents for Mr. Raphaely to perfect his appeal related to his work performance at 18 Gartner,” and responded that “[w]e disagree and are aware of no documents relevant to Mr. 19 Raphaely’s appeal that have not already been provided.” A.R. 4. 20 D. Procedural History 21 Raphaely filed a complaint against Gartner and the Plan on September 8, 2020, alleging 22 two claims for relief: 1) a claim for recovery of plan benefits under 29 U.S.C. § 1132 (a)(1)(B); and 23 2) a claim for breach of fiduciary duties under 29 U.S.C. § 1104 . Defendants moved to dismiss 24 the second claim, arguing that it sought relief that was duplicative of the relief sought in 25 connection with the first claim, which the court denied on December 10, 2020. [Docket No. 19.] 26 Now before the court are the parties’ cross motions for summary judgment. 27 II. LEGAL STANDARD 1 relief. A court shall grant summary judgment “if . . . there is no genuine dispute as to any material 2 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The burden 3 of establishing the absence of a genuine issue of material fact lies with the moving party, see 4 Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986), and the court must view the evidence in the 5 light most favorable to the non-movant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 255 6 (1986). A genuine factual issue exists if, taking into account the burdens of production and proof 7 that would be required at trial, sufficient evidence favors the non-movant such that a reasonable 8 jury could return a verdict in that party’s favor. Id. at 248 . The court may not weigh the evidence, 9 assess the credibility of witnesses, or resolve issues of fact. See id. at 249 . 10 To defeat summary judgment once the moving party has met its burden, the nonmoving 11 party may not simply rely on the pleadings, but must produce significant probative evidence, by 12 affidavit or as otherwise provided by Federal Rule of Civil Procedure 56, supporting the claim that 13 a genuine issue of material fact exists. TW Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 14 F.2d 626, 630 (9th Cir. 1987). In other words, there must exist more than “a scintilla of evidence” 15 to support the non-moving party’s claims. Anderson, 477 U.S. at 252 . Conclusory statements 16 without factual support are insufficient to defeat a motion for summary judgment. Surrell v. Cal. 17 Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008). Similarly, “[w]hen opposing parties tell 18 two different stories, one of which is blatantly contradicted by the record, so that no reasonable 19 jury could believe it, a court should not adopt that version of the facts” when ruling on the motion. 20 Scott v. Harris, 127 S. Ct. 1769, 1776 (2007). 21 On an issue where the nonmoving party will bear the burden of proof at trial, the moving 22 party can prevail merely by pointing out to the district court that there is an absence of evidence to 23 support the nonmoving party’s case. Celotex, 477 U.S. at 324-25 ; Soremekun v. Thrifty Payless, 24 Inc., 509 F.3d 978, 984 (9th Cir. 2007). If the moving party meets its initial burden, the opposing 25 party must then set out specific facts showing a genuine issue for trial in order to defeat the 26 motion. Anderson, 477 U.S. at 250 ; Soremekun, 509 F.3d at 984 ; see Fed. R. Civ. P. 56(c), (e). 27 The opposing party’s evidence must be more than “merely colorable” and must be “significantly 1 allegations or denials of the adverse party’s evidence, but instead must produce admissible 2 evidence showing there is a genuine dispute of material fact for trial. Nissan Fire & Marine Ins. 3 Co. v. Fritz Cos., Inc., 210 F.3d 1099 , 1102-03 (9th Cir. 2000). Disputes over irrelevant or 4 unnecessary facts will not preclude a grant of summary judgment. T.W. Elec. Serv., 809 F.2d at 5 630. 6 A different standard applies to Raphaely’s first claim for benefits under the Plan. In the 7 ERISA context, summary judgment generally is the vehicle for deciding the case; the factual 8 determination of eligibility for benefits is decided solely on the administrative record and “the 9 non-moving party is not entitled to the usual inferences in its favor.” Gilliam v. Nevada Power 10 Co., 488 F.3d 1189 , 1192 n.3 (9th Cir. 2007); Bendixen v. Standard Ins. Co., 185 F.3d 939 , 942 11 (9th Cir. 1999) overruled on other grounds by Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955 , 12 965 (9th Cir. 2006) (en banc). 13 Where, as here, the parties have each filed motions for summary judgment, “[e]ach motion 14 must be considered on its own merits.” Fair Hous. Council of Riverside Cty., Inc. v. Riverside 15 Two, 249 F.3d 1132 , 1136 (9th Cir. 2001). “In fulfilling its duty to review each cross-motion 16 separately, the court must review the evidence submitted in support of each cross-motion.” Id. 17 III. DISCUSSION 18 A. Claim One: Recovery of Plan Benefits Under 29 U.S.C. § 1132 (a)(1)(B) 19 1. Standard of Review 20 ERISA allows a participant in an employee benefit scheme to bring a civil action to 21 recover benefits due under the terms of a plan. 29 U.S.C. § 1132 (a)(1)(B). The court applies a de 22 novo standard of review to actions for the recovery of ERISA benefits unless the plan in question 23 grants discretionary authority to the trustee or fiduciary. Firestone Tire & Rubber Co. v. Bruch, — 24 — 489 U.S. 101, 114-15 (1989). If a plan unambiguously grants the plan administrator discretionary 25 authority to construe the plan’s terms, the court reviews the matter for an abuse of discretion. 26 Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 111 (2008). “Neither the parties nor the courts should 27 have to divine whether discretion is conferred.” Sandy v. Reliance Standard Life Ins. Co., 222 1 substance that the Plan Administrator or fiduciary has authority, power, or discretion to determine 2 eligibility or to construe the terms of the Plan, the standard of review will be de novo.” Id. 3 Defendants argue that the abuse of discretion standard applies to Raphaely’s first claim for 4 relief. Defs.’ Mot. 15-16. Raphaely does not contend that de novo review is appropriate but 5 argues that “the Court cannot apply a pure abuse-of-discretion standard” due to the existence of a 6 conflict of interest. Pl.’s Mot. 18. 7 Here, the Plan unambiguously confers discretionary authority to determine eligibility for 8 benefits and construe the terms of the Plan: it provides that the Administrator has the sole right “to 9 construe and interpret the Plan, decide all questions of eligibility, determine the status and rights 10 of Employees, and determine the amount, manner and time of payment of any benefits 11 hereunder[.]” A.R. 44, 48, 56. It further provides that “[t]he decisions of the Administrator with 12 respect to any matter it is empowered to act on shall be made by it in its sole discretion based on 13 the Plan documents and shall be final, conclusive and binding on all persons.” A.R. 56-57. The 14 Ninth Circuit has “repeatedly held that similar plan wording—granting the power to interpret plan 15 terms and to make final benefits determinations—confers discretion on the plan administrator.” 16 Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 963 (9th Cir. 2006) (en banc) (citations 17 omitted). Since the Plan confers discretion to construe the terms of the Plan and to determine 18 claims regarding eligibility for benefits on the Administrator, the court finds that abuse of 19 discretion review applies. See id. at 965 . 20 As to the conflict of interest, Raphaely contends, and Defendants do not dispute, that 21 Gartner funds the Plan from which benefits are paid. Pl.’s Mot. 18; Defs.’ Mot. 18-19. See A.R. 22 58 (“The Plan’s funding policy and method are to provide benefits from the general assets of the 23 Employer.”), 60 (“All benefits under the Plan shall be paid exclusively by the Employer . . .”), 48, 24 51 (defining “Employer” to mean “the Company” and defining “Company” to mean Gartner). 25 Given that the Plan is funded by Gartner and administered by a Severance Plan Committee 26 comprised of Gartner employees, there is a structural conflict of interest. Metro. Life Ins. Co., 554 27 U.S. at 112; see Burke v. Pitney Bowes Inc. Long–Term Disability Plan, 544 F.3d 1016, 1026 (9th 1 and funded directly by employers”). This is because the employer “both decides who gets benefits 2 and pays for them, so it has a direct financial incentive to deny claims.” Saffon v. Wells Fargo & 3 Co. Long Term Disability Plan, 522 F.3d 863, 868 (9th Cir. 2008). 4 In the Ninth Circuit, the existence of a conflict of interest is a factor to be weighed in 5 determining whether there was an abuse of discretion. Abatie, 458 F.3d at 967-69 ; Montour v. 6 Hartford Life & Acc. Ins. Co., 588 F.3d 623, 631 (9th Cir. 2009). The presence of a conflict does 7 not convert abuse of discretion review into de novo review, but it means that a reviewing court 8 must consider the “conflict of interest in deciding how skeptical to be of the administrator’s 9 decision.” Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 675 (9th Cir. 2011). The 10 weight a reviewing court accords to a conflict varies “based on the degree to which the conflict 11 appears improperly to have influenced a plan administrator’s decision.” Montour, 588 F.3d at 12 631. If the facts and circumstances of a particular case “indicate the conflict may have tainted the 13 entire administrative decisionmaking process, the court should review the administrator’s stated 14 bases for its decision with enhanced skepticism . . .” Id.; see Nolan v. Heald Coll., 551 F.3d 1148 , 15 1153 (9th Cir. 2009) (“[A] court is required to consider the conflict whenever it exists, and to 16 temper the abuse of discretion standard with skepticism ‘commensurate’ with the conflict.” (citing 17 Abatie, 458 F.3d at 959, 965, 969 )). 18 2. Factors Bearing on the Level of Skepticism 19 The Ninth Circuit has provided guidance in determining how much weight to give to a 20 structural conflict of interest. For example, a court may weigh a conflict more heavily if “the 21 administrator provides inconsistent reasons for denial; fails adequately to investigate a claim or 22 ask the plaintiff for necessary evidence; fails to credit a claimant’s reliable evidence; or has 23 repeatedly denied benefits to deserving participants by interpreting plan terms incorrectly or by 24 making decisions against the weight of evidence in the record.” Abatie, 458 F.3d at 968 -69 25 (internal citations omitted). On the other hand, “[t]he level of skepticism with which a court views 26 a conflicted administrator’s decision may be low if a structural conflict of interest is 27 unaccompanied . . . by any evidence of malice, of self-dealing, or of a parsimonious claims1 administrative record to decide the nature, extent, and effect on the decision-making process of 2 any conflict of interest.” Id. at 970 . 3 Raphaely does not present any evidence outside the administrative record that bears on the 4 weight to be given to the conflict of interest and instead relies solely on actions taken with respect 5 to his own claim. Id. at 19. He argues that the court should “heavily” weigh the structural conflict 6 “in his favor” for several reasons. Pl.’s Mot. 18. 7 The court notes that Raphaely’s arguments on this point are disorganized and difficult to 8 follow. For example, even though there are two Defendants, he does not clearly identify which 9 Defendant he contends is responsible for each alleged action. He repeatedly refers to “Gartner” 10 when referring to actions by the Administrator and/or the Severance Plan Committee, such as the 11 denial of his claim, production of documents, and decision on appeal. See Pl.’s Mot. 10-13. 12 Additionally, Raphaely phrases the following contentions as if they apply to more than one 13 individual, repeatedly using the terms “plaintiffs,” “beneficiaries,” “claims,” and “appeals.” See 14 id. at 19. The court assumes that these are typographical errors, as there is nothing in the 15 Administrative Record about Gartner and/or the Administrator/Severance Plan Committee’s 16 treatment of individuals other than Raphaely, and Raphaely did not present any such evidence 17 outside the Administrative Record for the court’s consideration. 18 a. Failure to Credit Evidence and Argument 19 First, Raphaely argues that Gartner “ignor[ed] or fail[ed] to give any credit” to evidence 20 and argument he presented in his claim and appeal. Pl.’s Mot. 19. As Raphaely presented his 21 claim and appeal to the Administrator, not Gartner, the court construes this argument as a 22 challenge to the Administrator’s actions. It is without merit. “A court may weigh a conflict more 23 heavily if . . . the administrator . . . fails to credit a claimant’s reliable evidence.” Abatie, 458 F.3d 24 at 968 (citing Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003) (holding that 25 even though “plan administrators are not obliged to accord special deference to the opinions of 26 treating physicians” in the ERISA context, they “may not arbitrarily refuse to credit a claimant’s 27 reliable evidence, including the opinions of a treating physician”)). In its decision denying the 1 indicating poor performance” and “found it to be inaccurate” based on Allard’s statements that “he 2 addressed performance concerns with Mr. Raphaely on multiple occasions.” See A.R. 3. The 3 Administrator was tasked with determining whether Raphaely’s termination was a “Covered 4 Termination of Employment” or whether it was for “performance-related reasons.” As part of that 5 inquiry, it was entitled to weigh Raphaely’s contentions against statements by his supervisor about 6 his performance and feedback thereon. Raphaely points to nothing in the record that supports that 7 the Administrator “arbitrarily refuse[d] to credit [Raphaely’s] reliable evidence.” 8 b. Failure to Investigate Raphaely’s Claim and Appeal 9 Next, Raphaely contends that there was a failure to adequately investigate Raphaely’s 10 claim and appeal “by not including a single performance related document or email in the 11 administrative record.” Pl.’s Mot. 19. This is inaccurate. The Administrative Record contains 12 Allard’s description of “ongoing verbal feedback” he gave to Raphaely as well as Allard’s 13 assessment of Raphaely’s performance, which was provided in response to the Administrator’s 14 own request for information to evaluate Raphaely’s claim. See A.R. 6. In other words, the 15 Administrator asked Raphaely’s supervisor to respond to Raphaely’s statements about his 16 performance and then included that response in the Administrative Record. The Administrative 17 Record also contains the Employee Survey Results dated September 2019, which pre-date the 18 termination, and which contain uniformly negative comments about Raphaely’s leadership, 19 strategy, and professionalism by members of his team. These documents clearly bear on 20 Raphaely’s job performance and are “performance related document[s].” 21 c. False or Misleading Statements About Raphaely’s Rights 22 Raphaely next argues that there were “statements that were false and/or misleading, both 23 before and during the claims adjudication period, about Raphaely’s rights to pursue benefits under 24 the Plan, his lack of entitlement to Plan benefits, his right to file claims under the Plan, and the 25 purported unavailability of any benefits unless plaintiff[ ] released all of [his] claims against 26 Gartner.” Pl.’s Mot. 19. He also contends that “the management team . . . tried to prevent 27 participants from pursuing claims by prematurely stating that . . . his claim would be denied for 1 misleading statements and does not spell out this argument in any detail. It is possible that 2 Raphaely’s argument is based on Formichelli’s email following his termination informing him that 3 “no severance is available” because the “separation was for performance related reasons” and 4 offering “other separation benefits” that were contingent on him signing the separation agreement. 5 See A.R. 65. The problem is that Raphaely does not explain how Formichelli’s statements were 6 false or misleading, and nothing in the record supports the conclusion that Formichelli (or any 7 other Gartner employee) lied to or mislead him about his benefits. Rather, it appears undisputed 8 that Gartner offered Raphaely separation benefits to which he was not entitled in exchange for him 9 releasing any claims against Gartner. He also does not identify any “false and/or misleading” 10 statements by the Administrator in the course of the adjudication of his claim. Additionally, 11 Raphaely does not point to anything in the Administrative Record that supports his assertion that 12 anyone “tried to prevent [him] from pursuing” his claim. 13 d. Procedural Irregularities 14 Finally, Raphaely contends that there were “procedural irregularities” that bear on the 15 weight the court should give the structural conflict of interest. He contends that he was unable to 16 obtain a “full and fair review” of the denial of his claim for severance benefits because 1) Gartner 17 refused to produce documents related to his performance that were under its exclusive possession, 18 custody, and control, and which he requested; 2) Gartner’s decision letters failed to provide “the 19 necessary information for a ‘meaningful dialogue’”; and 3) Gartner created “new purported 20 evidence after the termination in an effort to support . . . its decisions” and did not produce the 21 evidence until after the decision on appeal was made. Pl.’s Mot. 16-17, 19. 22 Section 503 of ERISA, 29 U.S.C. § 1133 (2), provides that a claimant is entitled to a “full 23 and fair review” of an adverse benefit determination, and the Department of Labor has issued 24 regulations governing claims procedure requirements. See 29 C.F.R. § 2560.503-1 . The Ninth 25 Circuit has explained that a “procedural irregularity, like a conflict of interest, is a matter to be 26 weighed in deciding whether an administrator’s decision was an abuse of discretion.” Abatie, 458 27 F.3d at 972. Therefore, “[w]hen an administrator can show that it has engaged in an ongoing, 1 give the administrator’s decision broad deference notwithstanding a minor irregularity.” Id. 2 (cleaned up). “A more serious procedural irregularity may weigh more heavily.” Id. 3 Regarding the alleged failure to produce documents, Raphaely states that Gartner 4 “refus[ed] to produce work performance related documents that were under Gartner’s exclusive 5 possession, custody and control,” and argues that “[t]hose documents would have unequivocally 6 established that Mr. Raphaely’s employment was not terminated for performance-related reasons.” 7 Pl.’s Mot. 17. To begin with, his March 30, 2020 letter requesting numerous categories of 8 documents did not include a request for “work performance related documents” or otherwise 9 request documents that fell within that category. See A.R. 190-93. The Administrator provided 10 “[t]he internal documents to which Mr. Raphaely is entitled and upon which the Committee relied, 11 or considered, in determining that Mr. Raphaely was ineligible for benefits under the Plan.” A.R. 12 39-40. Importantly, Raphaely does not specify what information, if any, was missing. See 13 Hoskins v. Bayer Corp., 564 F. Supp. 2d 1097, 1104 (N.D. Cal. 2008) (where the plaintiff did not 14 submit evidence showing what information any alleged missing documents contained or that 15 documents were missing as a result of the defendant’s conduct, holding that there was no showing 16 that the defendant was “self-dealing or otherwise acting in bad faith” for purposes of determining 17 the level of skepticism to apply to exercise of discretion). Given the brief tenure of his 18 employment, which was less than 12 months, it is not surprising that Gartner did not have more 19 extensive documentation of Raphaely’s job performance, such as performance reviews or other 20 similar documents. Raphaely also does not identify any particular procedural requirement 21 breached by Gartner and/or the Administrator. 22 Next, Raphaely contends that Gartner failed to provide “information that would permit for 23 a meaningful dialogue” in its letters denying his claim. Pl.’s Mot. 16-17. He cites Booton v. 24 Lockheed Medical Ben. Plan, 110 F.3d 1461, 1463 (9th Cir. 1997), in which the Ninth Circuit 25 explained that ERISA regulations require “meaningful dialogue between ERISA plan 26 administrators and their beneficiaries. If benefits are denied in whole or in part, the reason for the 27 denial must be stated in reasonably clear language, with specific reference to the plan provisions 1 needed to make a reasoned decision, they must ask for it.” (citing 29 C.F.R. § 2560-503-1 (f)). 2 According to Raphaely, “Gartner’s decision letters did not provide the necessary information for a 3 ‘meaningful dialogue,’ despite the fact that [he] pointed out this error and requested that it be 4 corrected.” Pl.’s Mot. 17. Setting aside the fact that the “decision letters” were from the 5 Administrator, not Gartner, see A.R. 196-97, 3-4, Raphaely does not explain how the letters failed 6 to satisfy the applicable regulation. The Administrator’s denial letters each referred to the relevant 7 provisions of the Plan and offered the specific reason for the denial, that is, that the termination 8 was for performance-related reasons and thus was not a “Covered Termination of Employment” 9 entitling him to benefits. They also informed Raphaely of the appeal process. See A.R. 196-197, 10 3-4. 11 This case is distinguishable from Booton. In that case, the plaintiff requested medical 12 insurance coverage after she was kicked in the mouth by a horse, leaving four front teeth “hanging 13 from her gums.” 110 F.3d at 1462 . Her plan covered “accidental injury to natural teeth” but 14 excluded ordinary dental work. Id. The dental procedure required work on her rear teeth, which 15 were not injured, and the insurer denied the claim for work related to the rear teeth on the ground 16 that they had not been injured. Id. In response to the denial, the plaintiff tried to explain the 17 connection between her injury and the work performed on her back teeth, but the insurer 18 repeatedly denied the claim. Id. Her consulting dentist noted which records the insurer should 19 request and stated that pre-injury x-rays would help to substantiate the plaintiff’s claim, but the 20 insurer never requested the dental records and did not follow up on the consulting dentist’s 21 opinion. Id. She later received a two-page letter denying her claim, which stated: “[I]t has been 22 determined . . . that some of the dental work claimed . . . was not the result of an accidental 23 injury.” Id. at 1463 . The plaintiff filed suit, lost on summary judgment, and appealed to the Ninth 24 Circuit. Id. 25 The court held that the insurer “denied benefits without a rational explanation,” failed to 26 even acknowledge the plaintiff’s argument that “her back teeth needed work on account of the 27 injury to her front teeth,” failed to ask for key records such as pre-accident x-rays, and noted that 1 [the insurer] sought their explanations.” Id. The court reversed, holding that “to deny the claim 2 without explanation and without obtaining relevant information” was an abuse of discretion. Id. at 3 1464. 4 In contrast to Booton, Raphaely does not identify any key documents or “relevant 5 information” that would have borne on the Administrator’s decision. For example, he does not 6 identify documents or information that contradict his supervisor’s claim that “his performance did 7 not meet the standards [Gartner] needed from an executive leader of a critical function,” see A.R. 8 5, or that undermine the Administrator’s conclusion that the termination was related to his 9 performance. Nothing in the record before the court suggests that the Administrative Record is 10 missing key documents. To be sure, the Administrator’s letter denying his initial claim for 11 benefits lacked any detail supporting the conclusion that he was terminated for performance12 related reasons. A.R. 196-97. It was not until the decision denying his appeal that the 13 Administrator offered any further explanation, citing both the Employee Survey Results and 14 Allard’s email. A.R. 3-4. The delay between the March 4, 2020 claim denial and the 15 Administrator’s production of documents related to his job performance on April 17, 2020 is 16 noteworthy, particularly because Raphaely had immediately protested his termination “for cause” 17 in an email sent the same day as his termination. However, given that Raphaely expressly 18 referenced the Employee Survey Results in the email he sent on November 11, 2019 shortly after 19 he was fired, see A.R. 66, it appears that he was already on notice that those survey results 20 contributed to his termination and by extension, the Administrator’s determination that his 21 employment was terminated for performance-related reasons. Raphaely does not argue or 22 otherwise explain how the decisions failed to satisfy the standard set forth in Booton. 23 Finally, Raphaely contends that Gartner created “new purported evidence after the 24 termination in an effort to support . . . its decisions” and did not produce the evidence until after 25 the decision on appeal was made. Pl.’s Mot. 17. This appears to be a reference to Allard’s May 26 18, 2020 email in response to the Severance Plan Committee’s request for information. See A.R. 27 5-6. This email does not demonstrate a procedural irregularity in the handling of Raphaely’s 1 investigate a claim, including asking for more information if “needed to make a reasoned 2 decision.” See Booton, 110 F.3d at 1463 .3 That is what happened here. 3 In sum, Raphaely has not shown any procedural irregularities that justify reducing the 4 deference owed to the Administrator’s decision. See Abatie, 458 F.3d at 972 (“[a] procedural 5 irregularity, like a conflict of interest, is a matter to be weighed in deciding whether an 6 administrator’s decision was an abuse of discretion.”). 7 Given the existence of a structural conflict, the court will weigh the conflict as a factor 8 when applying the abuse of discretion standard. Since Raphaely has not offered evidence 9 supporting a high level of skepticism in light of the structural conflict, such as evidence “of 10 malice, of self-dealing, or of a parsimonious claims-granting history,” the court views the 11 “conflicted administrator’s decision” with a low amount of skepticism. See Hoskins, 564 F. Supp. 12 2d at 1105. 13 3. The Administrator’s Exercise of Discretion 14 In applying an abuse of discretion standard, the court’s review is limited to the record 15 before the plan administrator. Jebian v. Hewlett-Packard Co. Employee Benefits Org. Income 16 Prot. Plan, 349 F.3d 1098, 1110 (9th Cir. 2003) (citing McKenzie v. General Tel. Co., 41 F.3d 17 1310, 1316 (9th Cir. 1994)). Under the abuse of discretion standard, a plan administrator’s 18 decision “will not be disturbed if reasonable.” Day v. AT&T Disability Income Plan, 698 F.3d 19 1091, 1096 (9th Cir. 2012) (quotation omitted). The court must uphold an administrator’s 20 decision unless it is “(1) illogical, (2) implausible, or (3) without support in inferences that may be 21 drawn from the facts in the record.” Stephan v. Unum Life Ins. Co. of Am., 697 F.3d 917, 929 (9th Cir. 2012) (quoting Salomaa, 642 F.3d at 675 ). — 22 — The issue before the court is whether the Administrator’s decision to deny Raphaely — 23 — severance benefits was reasonable. As noted, the Plan provides that termination of an employee — 24 — for “performance-related reasons” is not a “Covered Termination of Employment,” and in that — 25 — circumstance, the employee is not eligible for severance benefits. While the Plan does not define — 26 — — 27 — 1 the term “performance-related reasons,” Raphaely does not argue that the term is vague or 2 ambiguous. The Administrator appeared to equate “performance-related reasons” with “poor 3 performance,” which is not unreasonable. See A.R. 29 (Raphaely Decl. ¶ 13) (“I submit that 4 Gartner’s present assertion that I was terminated for poor performance is inconsistent with all of 5 the information provided about my performance during my entire employment with Gartner.”). 6 After the Administrator received Raphaely’s declaration disputing that he was terminated 7 for poor performance, it asked his supervisor to review and respond to the declaration. Ultimately, 8 the evidence before the Administrator on appeal included Raphaely’s declaration, Allard’s 9 response thereto and his own assessment of Raphaely’s performance, and the Employee Survey 10 Results. Additionally, the Administrator had Formichelli’s email to Raphaely shortly after his 11 termination stating that he had been terminated for “performance related reasons.” See A.R. 3 12 (describing the evidence the Administrator considered, including “all the information provided by 13 [Raphaely]”). With the exception of Raphaely’s declaration, the evidence unequivocally 14 supported the conclusion that Raphaely’s termination was for performance-related reasons. In 15 particular, Allard stated that Raphaely’s performance was below standards and the Employee 16 Survey Results contained uniformly negative criticism of Raphaely, including that he had created 17 a “toxic work environment,” was unprofessional, demoralizing, and “hasn’t a clue how to lead.” 18 Based on this evidence, and taking into account the structural conflict of interest, the court 19 finds that the Administrator reasonably concluded that Raphaely was terminated for performance20 related reasons and therefore ineligible for severance benefits under the Plan. 21 B. Claim Two: Breach of Fiduciary Duties Under 29 U.S.C. § 1132 (a)(3) 22 Raphaely’s second claim for relief is for breach of fiduciary duties pursuant to ERISA § 23 502(a)(3), 29 U.S.C. § 1132 (a)(3). The parties cross-move for summary judgment on this claim. 24 Pl.’s Mot. 20-21; Defs.’ Mot. 19. 25 ERISA requires fiduciaries to discharge their duties “with respect to a plan solely in the 26 interest of the participants and beneficiaries and . . . for the exclusive purpose of: (i) providing 27 benefits to participants and their beneficiaries; and (ii) defraying reasonable expenses of 1 civil action “(A) to enjoin any act or practice which violates any provision of this subchapter or 2 the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such 3 violations or (ii) to enforce any provisions of this subchapter or the terms of the plan[.]” 29 4 U.S.C. § 1132 (a)(3). This includes requests for equitable relief for a plan administrator or 5 sponsor’s breach of fiduciary duty. Varity Corp. v. Howe, 516 U.S. 489, 515 (1996) (Section 6 1132(a)(3) authorizes beneficiaries to bring lawsuits for “‘appropriate’ equitable relief” for breach 7 of fiduciary obligations). 8 1. Raphaely’s Motion for Summary Judgment 9 Raphaely moves for summary judgment on his breach of fiduciary duties claim. He 10 devotes less than two full pages to the claim in his opening brief and his briefing is singularly 11 unhelpful. See Pl.’s Mot. 20-21. Raphaely contends that “Gartner breached their fiduciary duties 12 to plaintiff in many respects, including by” and then lists three numbered points, implying that the 13 list is not exhaustive. He identifies the following breaches, which the court quotes in their 14 entirety: 15 1. Failing to administer plaintiff’s benefit claim and appeal solely in the interest of the 16 Plan’s participants and beneficiaries, and instead administering those claims and 17 appeals solely for the benefit of Gartner, with the primary purpose and interest of 18 saving money for Gartner, including by prematurely informing plaintiff that his 19 claim would be denied before any claim had been made and that the only way 20 plaintiff could obtain reduced severance payments was to release all claims against 21 Gartner in exchange for a fraction of the benefits to which he was entitled under the 22 Plan; 23 2. Failing to inform plaintiff of his rights under the Plan and under ERISA, including 24 plaintiffs’ right to file benefits claims and appeals, and their right to bring suit 25 under ERISA for the wrongful denial of those claims and appeals and for 26 defendants’ breaches of fiduciary duty; and 27 3. Wrongfully denying plaintiff’s benefits claims and wrongfully denying plaintiff’s 1 plaintiff’s evidence and arguments, and depriving plaintiff of his rights under the 2 Plan and under ERISA for arbitrary and capricious reasons, in bad faith, and 3 contrary to the Plan language. 4 Pl.’s Mot. 20-21. 5 Raphaely does not cite evidence or anything in the Administrative Record to support any 6 of the alleged breaches, does not identify which individual acting on behalf of which Defendant 7 committed any of the alleged breaches, and does not cite any authority supporting the contention 8 that any of the vaguely-identified acts are actionable breaches. The sole “analysis” in the motion 9 is a citation to King v. Blue Cross & Blue Shield of Illinois, 871 F.3d 730, 744 (9th Cir. 2017), in 10 which the Ninth Circuit held that “[a] fiduciary has an obligation to convey complete and accurate 11 information material to the beneficiary’s circumstance, even when a beneficiary has not 12 specifically asked for the information” and that “fiduciaries breach their duties if they mislead plan 13 participants or misrepresent the terms or administration of a plan.” See Pl.’s Mot. 20. 14 Given the absence of an adequate identification of the specific alleged breaches, the failure 15 to cite evidence or the Administrative Record to support the alleged breaches, and the lack of any 16 meaningful discussion, Raphaely has failed to show that he is entitled to judgment on this claim as 17 a matter of law. His motion is denied as to this claim. 18 2. Defendants’ Motion for Summary Judgment 19 Defendants move for summary judgment on the breach of fiduciary duties claim on several 20 grounds. They note the complaint’s allegations that Defendants breached their fiduciary duties by 21 “(a) failing to advise [Raphaely] of his rights under the Plan and under ERISA, (b) failing to 22 administer the Plan pursuant to the Plan terms and applicable Department of Labor regulations, (c) 23 committing wholesale and flagrant violations of the procedural requirements of ERISA, and (d) 24 providing him false and/or misleading information regarding his rights under the Plan and under 25 ERISA.” Defs.’ Mot. 23 (quoting Compl. ¶ 30). They argue that each of the alleged breaches fail 26 as a matter of law because 1) none of the alleged breaches are actionable under ERISA; 2) the claim is premised on Gartner breaching a fiduciary duty (as opposed to the Plan) and that Gartner — 27 — 1 claim for benefits under section 1132(a)(1)(B). See id. at 19-25. 2 Raphaely’s response to these arguments is brief. He addresses only one purported breach, 3 as follows: Gartner did breach its fiduciary duties. It is undisputed that 4 Defendants, in an effort to avoid liability under the self-funded severance Plan, offered Raphaely a severance package that was 5 considerably less than what the Plan required without advising [him] of his rights under the Plan, in exchange for signing a release of all 6 claims that he might have against Defendants. 7 Pl.’s Reply 10. Raphaely argues that “[a] fiduciary cannot make an offer to settle a severance 8 claim and release all other possible claims before a claim is made, or during the claim or appeal, 9 because it violates the fiduciary’s duty to process the claim ‘solely in the interests of the 10 participants,’” but does not cite any authority for his argument. See id. 11 As an initial matter, Raphaely does not address the other breaches alleged in the complaint 12 and thus concedes them. 13 Regarding the claim that one or both Defendants offered him a severance package that was 14 “less than what the Plan required” without advising him of his rights under the Plan in exchange 15 for a release of claims against Defendants, Raphaely cites no evidence of such an offer and does 16 not identify which person(s) took this action on behalf of which Defendant. Raphaely’s detailed 17 May 4, 2020 declaration does not address this interaction at all. In a second declaration, dated 18 May 8, 2020, Raphaely states only that “[o]n November 11, 2019, Gartner made me an offer to 19 settle my severance claim and release all other possible claims I had against Gartner.” See A.R. 8, 20 26-29. This is inadequate. To defeat summary judgment, Raphaely must produce evidence 21 supporting the claim that a genuine issue of material fact exists. See TW Elec. Serv., Inc., 809 22 F.2d at 630. Conclusory statements without factual support, like those in Raphaely’s briefing, are 23 insufficient to defeat a motion for summary judgment. Surrell, 518 F.3d at 1103 . 24 Liberally construing Raphaely’s briefs, it is possible that this claim is based on 25 Formichelli’s email to Raphaely informing him that “no severance is available” because the 26 “separation was for performance related reasons” and offering him “other separation benefits” that 27 were contingent on him signing the separation agreement. See A.R. 65. The problem with such 1 Formichelli’s email that he could receive certain separation benefits only if he released his claims 2 against Gartner constitute an actionable breach of a fiduciary duty or otherwise violate ERISA. 3 Even assuming for the sake of argument that Formichelli’s statements could constitute a 4 || breach of fiduciary duty, there is no evidence in the record that Formichelli made the statements 5 on behalf of a fiduciary. “To establish an action for equitable relief under ERISA section 6 502(a)(3), 29 U.S.C. § 1132 (a)(3), the defendant must be an ERISA fiduciary acting in its 7 fiduciary capacity, and must “violate [ ] ERISA-imposed fiduciary obligations[.]” Mathews v. 8 Chevron Corp., 362 F.3d 1172, 1178 (9th Cir. 2004) (citing Varity, 516 U.S. at 498, 506 ). While 9 || Defendants admit that the Plan is a fiduciary, see Defs.’s Reply 7 n.5, there is no evidence in the 10 record that Formichelli acted on behalf of the Plan. As to Gartner, Defendants dispute that it is a 11 fiduciary. Defs.’ Mot. 20-21; Defs.’ Reply 2-4. Raphaely responds to Defendants’ argument that a 12 Gartner is not a fiduciary that may be held liable under ERISA without citing any legal authority 13 || whatsoever. See Pl.’s Reply 2-4. 14 In sum, Raphaely has not produced any evidence supporting his claim that a genuine issue 15 of material fact exists with respect to his breach of fiduciary duties claim. Accordingly, Q 16 || Defendants’ motion for summary judgment is granted as to his second claim for relief. 17 || Iv. CONCLUSION Z 18 For the foregoing reasons, Defendants’ motion for summary judgment 1s granted. 19 || Raphaely’s motion for summary judgment is denied. The Clerk shall enter judgment in Defendants’ favor and close this case. DIST) 20 KS DISTRIG> 21 Ss SS » A) 09 IT IS SO ORDERED. &) □ 23 || Dated: August 17, 2022 Z/iNrr ~ < □□ 24 □ An yue. > | Aad Eisen □□□ 25 Gi idl Gages WO 1 oteee TT □□ □□ 26 “> □ Ko . DISTRICS — 28 —